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17 January 2011

The Exclusivity of Balloon Dogs

Most cases of copyright infringement are relatively routine and involve a copyright owner (who is generally well-financed) claiming that someone is in violation of its exclusive “right to public performance” – that wonderfully broad right under which a large number of uses of works could be made to fall, given a little imagination.

Every once in while, though, there is a case which does not fit the stereotype, and almost every time that happens, the issue may, at first glance, cause amusement. Very often though, there are interesting underlying issues though – even if they are issues which would not generally interest anyone other than a copyright enthusiast.

Some of the most interesting cases come from the world of art and entertainment, often because artists quite simply disregard copyright law, or at least the version of copyright law which content owners who specialise in the collection and commercialisation of copyrights would like to see prevail.

Art is rarely new. And it is unlikely to be entirely original. Artists are almost invariably inspired by the works of others who came before them, whether those others are recognised as authors of those works, or whether those works have fallen firmly into the public domain with their original authors unrecognised, as is the case with folklore, and possibly, certain styles of art.

The reliance of some artists on works which precede the creation of their own works has resulted in their becoming well-known not just because of their artistry but because of their contribution to copyright law – they have helped define the scope of the right to derivation i.e. the right of copyright owners to authorise /control adaptations of the works they own.

It is not always corporate entities which make claims of the violation of intellectual property rights though. In a recent case, the artist Jeff Koons claimed the exclusive right to sell Balloon Dogs. He did not initiate legal proceedings but had lawyers send across a cease and desist notice. In this case, Balloon Dog book ends manufactured in Canada were put on sale in the US. The book ends appeared remarkably similar to a Jeff Koons sculpture, and to every other balloon dog sold indiscriminately at carnivals, (and to balloon dogs sold, in the recent past, in countries like India, at crossroads with traffic lights). However, reportedly, the seller also had other items affiliated with artists on sale, and this could potentially support an argument that its intention was to sell book ends inspired by Koons.

The Notice arrived just before Christmas and the seller did not sell the balloon dog book ends over the holiday, but put them on sale almost immediately after. While it is unclear whether the book ends were in fact inspired by the Jeff Koons sculpture, it is pertinent to note that his sculpture is unlikely to be one which has been created on the basis of an entirely original idea. It is also unlikely that the idea underlying the sculpture of so unusual that a number of persons could not have created it independently.

As such, from a copyright perspective, it is unclear whether Jeff Koons’ claims are valid.

It is also interesting to consider the question of whether balloon dogs per se can in fact be the subject of copyright protection considering how widely available they are. It may be possible to compare them to paper boats which almost all children are taught how to make. And it would appear to strain the bounds of credibility to claim that making one paper boat entitles the maker to claim an exclusive right to make all and any paper boats, much less to make all and any objects which look like paper boats. Perhaps, by analogy, an argument could be made that balloon dogs are quite simply not copyrightable?

Nonetheless, there is the inescapable fact that the book ends in question do appear to resemble Koons' sculpture. Although this is one claim which one may have to leave the courts to determine, what is ironic is the balloon dog infringement claim has been made by an artist who has pushed the boundaries of fair use and attempted to restrict the scope of the right to derivation.

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